Globe editorial: A nation weeps in its expensive beer

For a brief moment, Canadians hoped that a brave New Brunswicker who was tired of paying too much for beer would free us all from the tyranny of provincial booze monopolies, and while he was at it end this country’s tedious regime of interprovincial trade barriers.

Alas, it was not to be. The Supreme Court of Canada ruled unanimously on Thursday that Gerard Comeau’s constitutional rights were not violated when he was fined $240 for bringing a trunkful of beer and alcohol from Quebec back into New Brunswick in 2012.

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Not only that, the Court reaffirmed that provinces have the right to maintain what effectively amount to trade barriers, as long as they don’t exist explicitly for that purpose.

The ruling makes sense in the framework of Canadian federalism, what with its requirement to protect the right of the provinces and territories, not to mention Ottawa, to operate effectively within their spheres of jurisdiction.

But it is still frustrating. This country is stuck in a rut when it comes to interprovincial commerce. Workers are routinely shut out of jobs in neighbouring provinces. Goods such as wine can’t be shipped to new domestic markets. Prices on dairy goods are inflated by naked provincial protectionism.

Politicians at both the provincial and federal level make noise about bringing down the barriers, but then do little about it. The system is too entrenched, with too many interests in every province hard at work keeping their corner of the country safe from competition.

And now the Court has cemented the status quo. It ruled that New Brunswick, like all provinces and territories, has the power to control numerous jurisdictions, including the sale of alcohol, and in doing so can pass laws that protect its turf, even if those laws limit interprovincial trade.

The ability of the New Brunswick Liquor Corporation to “exercise oversight over liquor supplies in the province would be undermined if non-Corporation liquor could flow freely across borders and out of the garages of bootleggers and home brewers,” the court said.

The Court went into this case fretting about what would happen if it supported Mr. Comeau’s contention that section 121 of the constitution, which says Canadian goods “shall be admitted free” into every province, should be interpreted to mean that the country is one giant free-trade zone.

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“If to be ‘admitted free’ is understood as a constitutional guarantee of free trade, the potential reach of s. 121 is vast,” the ruling says off the top. “Agricultural supply management schemes, public health-driven prohibitions, environmental controls, and innumerable comparable regulatory measures that incidentally impede the passage of goods crossing provincial borders may be invalid.“

That was the preoccupation of every provincial attorney general in the country, most of whom were intervenors on the case. They sought and got confirmation of the century-old precedent that says “free” means free of tariffs and duties, but not free of burdens or costs placed on a product for the larger purpose of protecting provincial autonomy.

So that settles that. Many Canadians had invested a lot in Mr. Comeau’s crusade. The Court seemed to understand why.

“Mr. Comeau did what many Canadians who live tantalizingly close to cheaper alcohol prices across provincial boundaries probably do,” it wrote. “He visited three different stores and stocked up.”

Of course he did. And he was busted in an improbable RCMP sting operation.

The thing that sticks in the craw is that the ruling effectively says the New Brunswick law under which Mr. Comeau was prosecuted was designed to protect the province’s monopoly on retail alcohol sales in its territory, and is not a sinister restriction on trade.

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As such, it is constitutional. But isn’t a monopoly already a restriction on trade? Mr. Comeau and other Canadians have been set up to lose no matter what they do.

Perhaps Canadians who pay too much for beer, wine and alcohol, and who are disappointed by the ruling, put their hopes in the wrong place. The same goes for those who thought the door to interprovincial free trade would suddenly swing wide open if Mr. Comeau won the day.

We have many rights in Canada, but one of them isn’t the right to economic freedom. It’s been that way for 150 years. One lone beer drinker wasn’t going to change it overnight.

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